In re: T.R. – Part 3

            The Ohio Supreme Court's opinion in In re: T.R. was a landmark decision defining the intersection of the rights of free speech and of freedom of the press with the potential of harm to an innocent child.

I had issued two orders that were under review by the Supreme Court. The first was a "gag order" restricting the parties involved in the litigation from "disseminating any information about this pending cause or about the minor child Tessa Reams to any and all persons * * * including, but not limited to, representatives of both the broadcast and print media; and * * * from appearing on any and all radio and television broadcasts regarding these causes or the minor child herein; and * * * from otherwise providing any information regarding these causes or said child either directly or indirectly in any fashion whatsoever.”

The second order provided that “the trial and all other proceedings in this matter shall be closed to all news media and members of the public, except parties, witnesses * * *, counsel, and necessary court personnel. * * *” I also restricted access to the case file to the same individuals. This came to be described as the "closure order."

The Supreme Court noted that I had conducted hearings before issuing each order to determine whether the potential harm to the child outweighed the public's right to open judicial proceedings and free speech. Based on the testimony I had heard, I believe that the danger that press access presented to Tessa was significant and that she deserved to be protected by the court. The Supreme Court agreed.

In Ohio, the "law" of any Supreme Court decision is presented in a paragraph, or several paragraphs, called the "Syllabus" of the case. The bulk of the opinion of the Court is an explanation of the facts and the legal reasoning behind the rule stated in the Syllabus. The most significant part of the Syllabus in In re: T.R. was the third paragraph:

3. Proceedings in juvenile court to determine if a child is abused, neglected, or dependent, or to determine custody of a minor child, are neither presumptively open nor presumptively closed to the public. The juvenile court may restrict public access to these proceedings pursuant to Juv.R. 27 and R.C. 2151.35 if the court finds, after hearing evidence and argument on the issue, (1) that there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the adjudication, and (2) the potential for harm outweighs the benefits of public access.

            The Court went on to state that, given the facts presented at the hearings I had conducted, it was clearly established that the potential harm to Tessa justified the gag and closure orders. We had beaten the powerful Columbus Dispatch and the publisher John W. Wolfe in the Supreme Court of Ohio.

            When we got the word that we had won, some members of the Domestic Court staff produced a banner that read "Who's Afraid of the Big Bad Wolfe" and hung it behind my desk. I later learned that a Dispatch reporter had told John Wolfe personally about this and that Mr. Wolfe was livid that I would show such disrespect to one of the most powerful men in Ohio. Although I firmly believed that we had done the right thing for Tessa Reams and for children in Ohio in general, I was about to pay a personal price for winning the case.

            Finally, after over five years of delay caused by the various appeals, we proceeded to try the case for custody of Tessa.

In re: T.R. – Part 2

          The press attention focused on the custody case involving Richard Reams, Beverly Seymour, and the child Tessa Reams was overwhelming. Finally, Tessa's Guardian ad Litem filed a motion seeking to enjoin the parties from communicating with the press. I conducted a hearing on this motion, which was attended by a television crew from Fox News. At one point, the Guardian and a reporter from Fox nearly came to blows in the courtroom. I pounded my seldom used gavel so hard I feared it would break.

            The Fox reporter made a statement opposing the motion, while a Dispatch reporter attended the hearing but had nothing to say. Beverly Seymour testified that, "I am doing everything I can as her mother to strengthen my position." In her opinion, increased public attention would bolster her case and was in Tessa's best interest. Norma Stotski, Tessa's biological mother, testified that she was asked to appear on the Geraldo program with Beverly.

            A licensed psychologist testified at the request of the Guardian that a child who is the subject of a custody dispute faces a "high probability" of emotional damage, and that substantial publicity about the case would increase the probability of harm. Therefore, the publicity sought by Beverly was not in the child's best interest.

            A few hours after the hearing, I entered an order enjoining the adult parties, their counsel, and agents from “disseminating any information about this pending cause or about the minor child Tessa Reams to any and all persons * * * including, but not limited to, representatives of both the broadcast and print media; and * * * from appearing on any and all radio and television broadcasts regarding these causes or the minor child herein; and * * * from otherwise providing any information regarding these causes or said child either directly or indirectly in any fashion whatsoever.”

            Shortly thereafter, the Guardian filed a motion seeking to close further proceedings in the case by excluding the public and press from future hearings. Again, I conducted a hearing to consider this motion. A social worker assigned to the case testified as an expert witness that press coverage of the trial would potentially be harmful to Tessa, since it would expose her to negative allegations about the people she considered her parents. Counsel argued that the presence of the press and public could inhibit the presentation of significant evidence due to the potential of harm to the child.

            The managing editor of the Columbus Dispatch testified to the benefits of permitting the press to observe and report on the proceedings. He pointed to the American tradition of open courtrooms and minimized the impact of any harm to the child in comparison to the public's "right to know."

            I returned to my chambers and wrote an opinion, finding that  “the interests in protecting Tessa Reams and in a full judicial exploration of all relevant evidence bearing on her best interest in the custody dispute are overriding and the presumption in favor of openness is overcome in this case. * * *” I ordered that “the trial and all other proceedings in this matter shall be closed to all news media and members of the public, except parties, witnesses * * *, counsel, and necessary court personnel. * * *” I also closed access to the case file to all but the participants in the case.

            The Columbus Dispatch immediately appealed the gag order and the closure order to the Court of Appeals. The Dispatch sued me individually, requesting that the Court of Appeals prohibit me from enforcing my orders. The Court of Appeals held that my orders were unconstitutional because a risk of substantial harm to Tessa had not been demonstrated and therefore the Dispatch's access to the proceedings was unduly limited. I was prohibited from enforcing the orders.

            The Guardian ad Litem and I both filed appeals from the Court of Appeals decision in the Supreme Court of Ohio, which agreed to hear the case. The Dispatch was represented by Jones, Reavis & Pogue, a high-powered, large law firm. I was represented by an assistant Franklin County Prosecutor whose office represents public officials in lawsuits related to their official duties. The Franklin County Public Defender's office and the Guardian ad Litem represented Tessa Reams. Amicus (Friend of the Court) briefs were filed by the Ohio Newspaper Association, Beverly Reams, pro se, The Ohio Association of Juvenile and Family Court Judges, the Ohio Association of Criminal Defense Lawyers, and the Federation for Community Planning.

            All proceedings were held in abeyance awaiting the decision of the Supreme Court. On June 13, 1990, that decision was announced.

In re: T.R. – Part 1

           It was late in 1988 when it all started. Clayton W. Rose, Jr. was the Administrative Judge of the Franklin County Domestic Relations and Juvenile Court at the time. When I got to the Courthouse that morning, he came to my office and said he wanted to talk to me. I didn't know it then (do we ever?) but events were about to begin to unfold that would change my life. Here is that story.

                                                          

            Judge Rose told me that he had set aside a custody decision in a divorce case and dismissed the custody portion of the case after facts were revealed to him concerning the alleged child of the parties. Genetic tests had revealed that Richard Reams, the husband in the divorce case, was neither the natural nor adoptive parent of the alleged child of the marriage. Further, the wife in the divorce, Beverly Reams, later known as Beverly Seymour, was neither the biological nor adoptive mother of the child.

            Judge Rose told me that a custody case had been filed by Beverley Seymour, pro se, concerning the child, whose name was Tessa Annaleah Reams. As Administrative Judge, he had assigned the case to me, if I was willing to accept it. "Sure," I said, "why not?' His response was: "Have fun."

            The circumstances of Tessa's birth were complex, to say the least. Richard and Beverly Reams were unable to conceive a child, so Richard contacted an agency called the Association for Surrogate Parenting Services, which put him in touch with Norma Lee Stotski. Norma agreed to act as a surrogate and to be artificially inseminated with Richard's sperm. She was to be paid $10,000 to provide this service, surrender custody of the child at birth, and consent to adoption of the child by Beverly.

            Tessa was born on January 12, 1985, and Richard and Beverly took possession of her soon after. Nothing was done to formalize the adoption of the child by Beverly. The divorce action, which Judge Rose eventually resolved without determining custody of the child, was filed a year later.

            Genetic tests to determine just who Tessa's parents were revealed that Richard was not her biological father; rather, a friend of Norma's named Leslie Miner had provided the sperm for a supposed self-administered artificial insemination of Norma after the attempts with Richard's sperm had failed. Neither Richard nor Beverly had been informed of this change in plans.

            While Richard and Beverly shared possession of Tessa, a custody action involving Richard, Beverly, Norma, and Leslie was commenced and assigned to me. A Guardian ad Litem was appointed to represent the best interests of Tessa. The battle was joined. Newspaper articles about the dispute appeared in the Delaware Gazette and the Columbus Dispatch.

But these initial articles were just the beginning of a storm of publicity that occurred when Beverly decided to attempt to enlist the press as her ally in the struggle to obtain custody of Tessa. In January of 1989, she sent a press release she prepared, accompanied by a picture of Tessa, entitled "Mother in Fact Battles Surrogate for Child" to newspapers and surrogate parenting organizations. The release included solicitation of contributions to a "legal fund."

All hell broke loose as The New York Times ran several articles about the case. The Columbus Dispatch included pictures in its coverage. People Magazine ran a six-page story. A supermarket tabloid ran a feature titled "Who Owns Baby Tessa" and invited readers to submit proposed solutions. A crew from Fox Television interviewed Beverly and she was invited to appear on the Geraldo talk show.

Something had to be done.

Ten Ways to Lose Your Custody Case – Part 5

          These last two hints on how to lose custody of children both relate to the failure of parents to take responsibility for their actions and the consequences of those actions. Sometimes a parent will come to see that things are not going well in their quest to be the primary custodial parent of their children. They then have two choices: They can examine their behavior and consider that their actions have placed them in the position they find themselves. Or, they can resist change and place the blame elsewhere.

9.         Don't get help

            Over the years, I have had contact as judge or lawyer with a number of parents who are clearly their own worst enemies. Sometimes the problem is drugs or alcohol, or both. Sometimes it is the result of personality or mental health problems. Sometimes it is the inability to control their emotional response to the other parent. Often, it is a combination of several of these factors.

            Problems of this nature often become apparent to the various players in a custody case, including the lawyer for the parent with the problems. It is very difficult for a lawyer to tell his or her own client that they are the source of the difficulties with their case. But a good lawyer will confront the client about the client's need to seek help to deal with a serious life problem that is impacting that parent's relationship with, and ability to care for, children.

            We were recently involved in a case where it was clear to all the lawyers and the Guardian ad Litem that one parent had serious mental health difficulties, as well as drug and/or alcohol challenges. The other parent, whom we represented, was compelled to seek a revision in the custodial arrangement because of fears expressed by a child concerning the erratic behavior of the parent with problems, and, most significantly, because the troubled parent would not acknowledge and seek help to overcome the problems that were interfering with their ability to take care of the child.

10.       Blame your lawyer – Get a new one

            Finally, when all is going poorly and the custody case seems about to be lost, individuals who cannot take personal responsibility shift the blame to the lawyer they have chosen to represent them. "Certainly," the client thinks, "this can't be my fault. I am a wonderful parent and my spouse is a miserable person. I don't like the advice my lawyer is giving me. If things aren't going my way, it must be my lawyer who is at fault."

However, there are several pitfalls associated with changing counsel in the middle of any litigation. Changing lawyers is expensive. Any litigation, whether it involves custody or some other issue, requires a lot of "front-end load" of the lawyer's time. When a case is already in progress, this may be compounded by the need to review and absorb a complex file just to get up to speed.

Changing lawyers also often sends a message to the other players in a case, including the opposing counsel, the Guardian ad Litem, and the judge and/or magistrate involved in the matter. Lawyers are generally leery about taking on a case that another lawyer has been handling, primarily because we are aware that clients change lawyers under circumstances that are usually difficult in cases that have gone off the tracks for some reason. Many lawyers simply refuse to be the "substitute" in a case that has been ongoing.

            Finally, if the client is changing lawyers because the advice he or she is getting seems to point to problems of the client's own making, the refusal to deal with realities cannot be cured by seeking new counsel. Parents in custody litigation need to look to their own behavior with as critical an eye as the one they focus on the other parent.